[Congressional Record Volume 160, Number 86 (Wednesday, June 4, 2014)]
[Senate]
[Pages S3420-S3421]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
MASTROIANNI CONFIRMATION
Ms. WARREN. Mr. President, earlier today, the Senate confirmed Mark
Mastroianni to fill a judicial vacancy in Western Massachusetts on the
District Court for the District of Massachusetts.
Mr. Mastroianni came highly recommended by the Advisory Committee on
Massachusetts Judicial Nominations. The advisory committee is comprised
of distinguished members of the Massachusetts legal community,
including prominent academics and litigators, and is chaired by former
Massachusetts district court judge Nancy Gertner. Their recommendation
reflects the strong sense of the Massachusetts legal community--and in
particular the legal community of Western Massachusetts--that he will
make an excellent district court judge.
Mr. Mastroianni is a true son of Western Massachusetts--born in
Springfield and a lifelong resident of Hampden County. Prior to his
confirmation, he served as the elected district attorney for Hampden
County--a position he has held since 2011. He graduated with honors
from the American International College in Springfield, MA and went on
to earn his law degree from Western New England College School of Law--
also in Springfield, MA.
Mr. Mastroianni began his career in the Hampden County district
attorney's office. He served there as an assistant district attorney
for over 5 years, gaining prosecutorial experience in a wide variety of
district and superior court matters. He then moved into private
practice, where he built a significant career as a defense attorney
representing clients in criminal and civil matters. Over the course of
16 years, he represented clients in matters before the Massachusetts
State trial courts and appeals courts, as well as the district court to
which he has been nominated.
In November 2010, Mastroianni ran as an independent and was
successfully elected to serve as the district attorney for Hampden
County in the western part of Massachusetts--a position that returned
him to lead the office where he began his career. As district attorney,
he was responsible for managing the prosecution of all cases in the 23
cities and towns that make up Hampden County.
Aside from the impressive qualifications of this candidate, the fact
of Mark's nomination is particularly important because the seat he has
been nominated to fill has been vacant for far too long--since U.S.
District Court Judge Ponsor took senior status in 2011. The vacancy has
strained the Federal judicial system in Western Massachusetts, causing
cases to be postponed, forcing judges from Boston to travel to
Springfield to hold hearings, and impeding the ability of citizens to
get their day in court. Filling this vacancy as quickly as possible has
been a top priority for me since I arrived in the Senate last year, and
his confirmation will significantly improve the administration of
justice in Western Massachusetts.
I am proud to have recommended Mark Mastroianni to President Obama.
He is an independent-minded district attorney whose diverse litigation
experiences, both as a top prosecutor and as a top defense attorney,
will enrich the Federal bench in Massachusetts. I have no doubt that he
will have a long and distinguished career as a member of the judiciary.
Mr. LEE. Mr. President, on April 11 of this year President
Obama nominated Sylvia Burwell to be the new Secretary of the
Department of Health and Human Services--HHS--a position that was
vacated that same day by former Secretary Kathleen Sebelius.
Article II, Section 3, Clause 2 of the United States Constitution
grants the President, as the chief executive, plenary power to nominate
members of his cabinet. But that same clause reserves the power of
appointment--that is, the power to accept or reject the nominee--
exclusively to the Senate.
The Constitution explains this unique division of power as follows:
the President ``shall nominate, and''--this is important--``by and with
the Advice and Consent of the Senate, shall appoint Ambassadors, other
public Ministers and Consuls, Judges of the supreme Court, and all
other officers of the United States.''
Far from a perfunctory practice, the responsibility to review the
fitness of presidential nominees is one of the essential mechanisms in
our Constitution's system of checks and balances.
And for the Members of this body who took an oath to ``support and
defend'' the Constitution, this is one of the most solemn duties
incumbent upon those occupying the office of United States Senator.
I urge my fellow Senators to demand that prior to confirmation Ms.
Burwell provide concrete, specific, and forthright answers--in
writing--to the questions that have been asked of her by Members of
this body.
I refuse to sit idly by and witness the same Washington charade in
which stated commitments to transparency are more important than actual
demonstrations of candor.
If we do not insist that Ms. Burwell's appointment be contingent upon
the transparency of her confirmation process, we will have established
a dangerous precedent for the future of this body.
Let's not forget: much of the authority that resides in HHS
ultimately derives from the delegation of authority from Congress. And
whenever Congress delegates power to the executive branch, we do so
based on the premise that we retain the power of oversight.
Therefore, we cannot, in good faith, hand over the reins of one of
the most important executive departments at a time when questions
remain unanswered and information is still undisclosed. Doing so would
undermine the institutional prerogatives of the Senate.
When we only partially carry out our constitutional duties to check
and balance the other branches, we alone are to blame for the continued
accumulation of power in the executive, where unelected bureaucrats are
not always as wise or as impartial as their proponents claim them to
be.
The unprecedented accumulation of power in the executive today is a
demonstrable fact. But it remains an open question whether we in
Congress care enough to do anything about it.
At this point, there is good reason for pessimism--if the kind of
acquiescence demonstrated in this confirmation process is any
indication.
But I remain optimistic, because I know that the American people
still get it. Outside the beltway, Americans still instinctively
understand the universal truth articulated by James Madison, the father
of the Constitution, over 200 years ago--that ``The accumulation of all
powers, legislative, executive, and judiciary, in the same hands,
whether of one, a few, or many, and whether hereditary, self-appointed,
or elective, may justly be pronounced the very definition of tyranny.''
This is precisely the type of accumulated power possessed by
executive departments such as HHS.
This power cannot be curtailed or dispersed overnight. But it will
continue to expand inexorably toward tyranny unless Members of
Congress--exercising our powers as officers of a separate and coequal
branch of government--don't push back.
We can begin by subjecting this nomination to the close scrutiny it
deserves.
The first thing we must recognize is that this is not the average
presidential nomination. We are not talking about the next secretary of
the Department of Motor Vehicles. Quite the opposite: Ms. Burwell has
been nominated to preside over one of the largest and most important
departments in the Federal Government. No matter who the nominee, this
is a job that should be filled with caution and circumspection.
By way of illustration, the HHS Secretary oversees an annual
operating budget of about $1 trillion--that is nearly 25 percent of all
Federal spending--as well as 11 separate operating divisions, including
the very important Centers for Medicare and Medicaid Services--CMS--and
the Food and Drug Administration--FDA.
Moreover, the next HHS Secretary is going to assume the helm of an
executive leviathan in the midst of implementing the Patient Protection
and Affordable Care Act. Obamacare is not only the most complex--and
controversial--law in recent memory, but it delegates an unprecedented
amount of authority to the HHS Secretary.
Often this delegation comes in the form of sweeping, open-ended
grants of
[[Page S3421]]
power that give the Secretary discretion to shape and reshape the law.
Like an unending series of blank checks to the bureaucracy, Obamacare
contains 700 instances of the ultimate carte blanche--``The Secretary
shall . . .''--to give the Secretary wide latitude to ``develop
standards,'' ``award grants,'' ``establish committees,'' ``make
adjustments,'' etc.
This kind of massive delegation of authority is justified--especially
by those who see it as a convenient way to avoid the difficulties of
lawmaking--on the theory that Congress will retain and exercise some
degree of oversight.
And it is true that both chambers of Congress have the ability to
hold hearings in which we subpoena executive officials to testify and
answer questions about laws, rules, and regulations under their
jurisdiction. But as we have seen over the past few years with the
implementation of Obamacare, this power is significantly impeded if
those executive officials refuse to answer our questions.
These facts raise the central question that ought to guide the
Senate's consideration of Ms. Burwell's nomination--namely, how will
Ms. Burwell exercise the expansive authority delegated to HHS vis-aa-
vis the powers and responsibilities of Congress?
Much of the job of the next HHS Secretary will be to facilitate
Congressional oversight of the Department, especially in its
implementation of Obamacare. Therefore, the Senate's decision should be
contingent upon Ms. Burwell's record of engaging with Congress.
Sadly, Ms. Burwell's tenure as the Director of the Office of
Management and Budget, as well as her performance in the Senate
committee confirmation hearings, gives me concern that she will
continue in the pattern of obfuscation and evasion established by
outgoing Secretary Kathleen Sebelius.
I therefore respectfully submit that we should proceed cautiously in
consideration of this nominee. More cautiously, indeed, than we have up
to this point.
For over the past 6 weeks, since the President nominated Ms. Burwell,
many in this body have neglected our end of the constitutional division
of power--preferring to act as if Ms. Burwell's appointment was a fait
accompli.
This state of affairs is troubling--and not simply because questions
remain unanswered, and information undisclosed, about Obamacare. The
problem is more fundamental than any one law.
The Senate's reluctance to protest against the equivocation and
distortion seen in this confirmation process undermines the separation
of powers and the system of checks and balances upon which our
constitutional order depends.
Respecting and upholding these principles of our Constitution is not
a matter of adhering to some arcane formality or following some
outdated tradition of the 18th century.
At issue here is whether or not this institution still believes in
the reason our Constitution divides power in the first place. Do we
still believe, as Madison said, that ``power is of an encroaching
nature, and that it ought to be effectually restrained from passing the
limits assigned to it''?
If we do, then we must employ the tools at our disposal to assert our
institutional prerogatives. Doing so will demonstrate to the other
branches that the power of government is not simply up for grabs.
Here again Madison's insights are instructive: in the famous
Federalist 51, he says, ``the great security against a gradual
concentration of the several powers in the same department, consists in
giving to those who administer each department the necessary
constitutional means and personal motives to resist encroachments of
the others. [. . .] Ambition must be made to counteract ambition. The
interest of the man must be connected with the constitutional rights of
the place.''
But if we disagree with Madison about the encroaching nature of power
. . . if we are undisturbed by the great accumulation of power in the
executive branch, which predates and will outlive Obama's presidency .
. . if we prefer to elevate policy preference and party allegiance over
love of liberty and the constitutional rights of Congress . . . then we
must not be surprised when--not if--our government takes on the
character and the spirit of tyranny.
Let me be clear: the kind of tyranny that threatens us is not of the
Saddam Hussein or Bashar al-Assad variety. The tyrannies of Saddam's
Iraq and, today, Assad's Syria are barbarous, murderous dictatorships
that extinguish every semblance of freedom and maintain their power
through violence and brutality.
What I am talking about is the kind of soft despotism that arises
when power is consolidated under the auspices of a paternal, benevolent
government.
At the end of his study of democracy in 19th-century America, Alexis
de Tocqueville explained how this kind of tyranny could emerge within a
democratic republic such as ours. Standing as a kind of warning for us
today, Tocqueville envisioned ``an immense and tutelary power'' that
``extends its arms over society as a whole,'' covering it ``with a
network of small, complicated, painstaking, uniform rules through which
the most original minds and the most vigorous souls cannot clear a way
to surpass the crowd.'' It does not ``break wills,'' he said, ``but it
softens them, bends them, and directs them; it rarely forces one to
act''--even Tocqueville didn't foresee the individual mandate--``but it
constantly opposes itself to one's acting; it does not destroy, it
prevents things from being born.''
This is certainly a dark image. But we cannot forget that Tocqueville
was bullish about America. He believed that American democracy had the
right attributes needed to avoid descending to these depths.
Chief among these attributes were our constitutional structures that
divided power and, more importantly, the spiritedness, courage, and
love of freedom that animated the American people and transformed the
mere ``parchment barriers'' of the Constitution into true limits on
governmental power.
It is precisely this spirit of freedom that the Senate must recover
if we are going to fulfill our constitutional obligations in this
confirmation process. Once we recognize the need to assert and defend
our interests as a separate and coequal branch of the government, we
will begin to focus on what is really at stake in our consideration of
this nominee.
The main issue here is not Ms. Burwell's character or credentials--
both of which are first-rate--but whether or not her appointment will
improve or further deteriorate the legislature's oversight over the
executive departments to which Congress has delegated vast amounts of
authority.
The question is not whether Ms. Burwell deserves to be HHS Secretary,
but whether the HHS, under Ms. Burwell's management, will continue in
the pattern of obstinate autonomy and limited cooperation established
under her predecessor.
If the answer is no, we cannot possibly vote to confirm this
nominee.
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